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Are Rights Out of Time? International Human Rights Law, Temporality, and Radical Social Change
This chapter introduces the role of paradoxes in shaping LGBTQI rights discourse in (trans)national political spaces. Specifically, it explores a recent UK House of Commons debate about “Global LGBT Rights” as a way to think about the potentialities and paradoxes of pursuing LGBTQI rights both at “home” and “abroad”. The chapter draws on postcolonial and queer theory in order to think about how the UK has deployed diplomatic and other resources to support decriminalisation and LGBTQI rights protections in Commonwealth and other states, often placing itself in opposition to laws that were first enacted by British colonial regimes. The chapter notes how the apparent opposition between the positions of the British Empire and the modern UK state masks more continuous international dynamics of queer boundary marking. Racialised figurations of queerness have long contributed to the demarcation of spaces as “civilised/uncivilised”, “developed/developing” and “centre/periphery”, consolidating international hierarchies in which the UK still seeks to play a central role. Thus, the queer legacy of colonialism is one in which queerness is variously regulated and rejected, deployed and denied, stabilising and disruptive. In tracing this paradoxical positioning of queerness across different spaces and temporalities, the chapter shows that it is important to interrogate the ongoing role of the past within the present and suggests that contending with this past might assist future efforts towards justice.
This article investigates how theoretical explorations of queer time can shed light on our understanding of law. Taking transgender rights in Hong Kong as a case study, it argues that legal judgments can entrench normative temporal structures and impose tropes such as linearity, futurity, and finality onto the life scripts of trans subjects. Through close readings of the Court of Final Appeal decision in W v. Registrar of Marriages and the recent judicial review challenges that have emerged in its aftermath, it demonstrates how the cases exclude transqueer individuals who do not fit into those temporal trajectories from the realm of rights protection. It also suggests ways of thinking about the temporalities of transgender issues differently. The analysis here stages an encounter between law and literary/cultural theory, and provides a new perspective on the current state of transgender rights in Hong Kong.
This article examines how efforts at legal legibility acquisition by gender diverse litigants result in problematic (e.g., narratives counter to self-identity) and, at times, erroneous discourses on sex and gender that homogenize the litigants themselves. When gender diverse persons approach the court with a rights claim, the narrative they present must necessarily limit itself to a normative discourse that the court may understand and, therefore, engage with. Consequently, the everyday lived experiences of gender diverse persons are often deliberately erased from the narrative as litigants mould themselves into the pre-existing normative legal categories of gender and sex. As a result of such mechanisms, the article finds that gender diverse litigants face epistemic injustice in the courts as their legal legibility is constructed within a constraining gender binary paradigm of judicial discourse.
The article explores the trajectory of transgender rights in India, through an analysis of case law prior to and post the landmark NALSA decision, to understand how the approach to transgender rights and identities has been shaped by and shapes, in turn, normative conceptions of gender. The article argues for the incorporation of temporal pluralism into the law that would allow courts to hear gender diverse litigant accounts premised on contemporary gender diversity beyond the binary (rather than incontestable prior understandings based in past precedent), which would better account for such social injustices.
The critique of human rights has proliferated in critical legal thinking over recent years, making it clear that we can no longer uncritically approach human rights in their liberal form. In this article I assert that after the critique of rights one way human rights may be productively re-engaged in radical politics is by drawing from the radical democratic tradition. Radical democratic thought provides plausible resources to rework the shortcomings of liberal human rights, and allows human rights to be brought within the purview of a wider political project adopting a critical approach to current relations of power. Building upon previous re-engagements with rights using radical democratic thought, I return to the work of Ernesto Laclau and Chantal Mouffe to explore how human rights may be thought as an antagonistic hegemonic activity within a critical relation to power, a concept which is fundamentally futural, and may emerge as one site for work towards radical and plural democracy. I also assert, via Judith Butler’s model of cultural translation, that a radical democratic practice of human rights may be advanced which resonates with and builds upon already existing activism, thereby holding possibilities to persuade those who remain sceptical as to radical re-engagements with rights.
In a growing number of countries, developments in domestic law concerning transgendered people are moving towards a more social approach to recognising and regulating gendered bodies. International developments – illustrated here by the Yogyakarta Principles - appear to be taking a different course in which (bio)logic and heteronormative family forms are uncritically embraced. This article provides examples from the Committee on the Elimination of Discrimination against Women which illustrate a reluctance to fully pursue the opportunities opened by new understandings of sex/gender and the related unwillingness to address gendered discrimination suffered by men and other genders. To counter the reinstatement of biology as foundational in gender, the article argues for more feminist and queer coalitional work and the adoption of a performative understanding of ‘sex’. A more liberatory and inclusive conception of gender should be pursued, without obscuring the specificity and diversity of the human rights abuses felt by those who are, or who are perceived as, transgendered.
Nation-states' "boundaries" are produced in time: around official working hours and terms of office, for instance, and in the historico-mythic " life of the nation. " Global human rights practices affirm and depend on nation-states' temporal authority, while also calling that authority into question. In different ways, global markets do likewise. In recent decades, the ubiquity of both finance capital and international human rights law, among other factors, may have encouraged the fracturing of time into intervals of ever-decreasing length. Temporal authority premised on the long term seems to have declining purchase, even as historicism and futurism abound, discouraging some modes of state-based politics associated with the long-term. In this context, international human rights law advocates seem increasingly preoccupied with the propagation of human rights concerns in " real time. " This orientation carries some peril, especially vis-à-vis its articulation with the temporalities of global finance capital. Even so, there is still time for political intervention on this uneven temporal terrain. Such intervention may be occasioned, this article argues, by reading international human rights law anachronistically, and reactivating the times and rhythms of the global economy, and of the nation-state, as political questions of the first order.
This review article considers Samuel Moyn's book The Last Utopia: Human Rights in History in the context of recent trends in the writing of human rights history. A central debate among historians of human rights,
in seeking to account for the genesis and spread of human rights, is how far current human rights practice demonstrates continuity
or radical discontinuity with previous attempts to secure rights. Moyn's discontinuity thesis and the controversy surrounding
it exemplify this debate. Whether Moyn is correct is important beyond the confines of human rights historiography, with implications
for their meaning in law, as well as their political legitimacy. This review argues that Moyn's book ultimately fails to convince,
for two broad reasons. First, a more balanced judgment would conclude that the history of human rights is both one of continuity
and discontinuity. Second, and more importantly, Moyn fails to offer a convincing account of the normativity of human rights.
Undertaking a history of human rights requires a deeper engagement with debates on the nature and validity of human rights
than Moyn seems prepared to contemplate.
What are human rights? After looking at the reasons why the ontology of human rights should not be reduced to the human rights legal infrastructure, and noting that the origin of human rights in “natural law” is no longer a widely persuasive answer, I shall consider a number of recently popular alternatives. My purpose in examining these is to argue that the “what” of human rights resides in philosophical claims about the value of the human person. The particular approaches considered all depend upon a “high anthropology”. I argue that contemporary accounts take this high anthropology from historical sources they no longer think viable, without giving an alternative account of why it should be held. Such an account is necessary, however, for human rights to be an authoritative political doctrine.
Temporality is an integral part of law. But legal commentary offers no analytical model to probe the fusion of law and temporality. This study proposes such a model and presents the four general principles of law's temporality. First, the principle of temporal correlation yields legally significant inferences. Although temporality per se is not the agent of change, events that occur within a short duration of time are presumed to be causally related. Second, the principle of temporal inertia carries the dynamics of normative change and stability. It illustrates the doctrine of precedent and prohibitive injunctions as manifestations of temporal inertia. Third, the principle of temporal triggers elucidates how law uses the point in time (t) and duration (delta-t) to both allocate and terminate powers, rights, and obligations. These time triggers, though arbitrary, contribute convenience and efficiency to the management of legal affairs. Finally, the principle of temporal cooperation delineates that time-sharing enhances productivity and utilization of assets. The workplace fortified with sovereign spatiotemporal borders may increase employee coordination and output, but cooperative flextime enmeshes work with socially gratifying lives. The framework of four principles invites lawyers, scholars, and judges to further explore the union between law and temporality.
This volume explores the principle and history of international human rights law. It addresses questions regarding the sources of human rights, its historical and cultural origins and its universality. It evaluates the effectiveness of procedures and international institutions in enforcing and ensuring compliance with human rights. This volume investigates the underlying structural principles that bind together the internationally-guaranteed rights and provide criteria for the emergence of new rights. It also evaluates whether the international human rights project has made a difference in the lives and well-being of individuals and groups around the world.
Darwin: A Very Short Introduction explores how Charles Darwin's theory of evolution has revolutionized biology since it was first presented to a wide readership in 1859. At this time, the influence and significance of The Origin of Species was secured by the direct challenge it posed to traditional views of creation by God. Today, Darwin's work on natural and sexual selection, while enlarged, embellished, and powerfully combined with genetics, remains central to the modern understanding of the evolution and diversification of all life. In this VSI, Darwin's major insights and arguments are analyzed, and the importance of his work for the development of modern biology is explained.
This wide-ranging study focuses upon the controversies surrounding the meaning and significance of Social Darwinism. It clarifies the nature of Social Darwinism and its relationship to the ideas of Darwin, Lamarck and Herbert Spencer. After examining the development of Social Darwinist theories by a number of European and American thinkers, Mike Hawkins explores the use of these theories in a number of ideological debates and movements of the period 1860–1945. These include socio-political reform, national and racial conflict, eugenics, the position of women and Nazism/Fascism. The aim is to illuminate, through detailed comparative analyses, both the flexibility and the limits of Social Darwinism - limits which derive from the view of nature which lies at the very heart of Social Darwinism. The study concludes with a discussion of modern sociobiology in order to assess the continuing vitality of Social Darwinism.
Human rights are axiomatic with liberal freedom. This book builds on the critique of this mainstream and official position on human rights, drawing attention to how human rights have been deployed to advance political and cultural intents rather than bring about freedom for disenfranchised groups. Its approach is unique insofar as it focuses on queer, feminist and postcolonial human rights advocacy, exposing how such interventions have at times advanced neo-liberal agendas and new forms of imperialism, and enabled a carceral politics rather than producing freedom for their constituencies.
Through a focus on campaigns for same-sex marriage, ending violence against women, and the Islamic veil bans in liberal democracies, human rights emerge as forms of governance that operate through normative prescriptions, which bind even as they purport to free, and establish a hierarchy of the human subject: who is human and who is not; who qualifies for rights and who does not. This book argues that the futurity of human rights rests in a transformative engagement with non-liberal registers of freedom beyond the narrow confines of the liberal fishbowl.
This book will have a global appeal for students and academics concerned with international and human rights law, jurisprudence, critical legal theory, gender studies, postcolonial studies, feminist legal theory, queer theory, religious studies, and philosophy. It will appeal to political activists and policymakers in the global justice arena concerned with the freedom of disenfranchised groups, human rights, gender justice, and the rights sexual and religious minorities.
Women’s increased role in the labour market has combined with concerns about the damaging effects of long working hours to push time-related issues up the policy agenda in many Western nations. This wide-ranging and accessible book assesses policy alternatives in the light of feminist theory and factual evidence. The book introduces mainstream ideas on the nature and political significance of time and re-frames them from a feminist perspective to provide a critical overview of policies in Western welfare states. Themes covered include gender differences in time use and the impact of ‘time poverty’ on women’s citizenship; the need to value time spent giving and receiving care; the social meanings of time and whether we can talk about ‘women’s time’ and ‘men’s time’; and the role of the past in framing policy options today. The book is essential reading for all those interested in gender inequality, time-use or work/rest-of-life balance. It will be an invaluable resource for students and academics throughout the social sciences.
The European Convention on Human Rights underwent a spectacular evolution over the first fifty years of its life. In recent times the European Court of Human Rights has been compared to a quasi-constitutional court for Europe in the field of human rights, and for some time the Convention has been viewed as a European Bill of Rights. The 'coming of age' of the ECHR system in the late 1990s was marked by the entry into force of Protocol 11, creating a new, full time Court. By contrast those who first proposed a European human rights guarantee were driven by an ambition to put in place a collective pact to prevent the re-emergence of totalitarianism in 'free' Europe. They were motivated by grisly memories of human rights abuse associated with World War Two, and the protection of 'human rights' was seen in that light. When the Convention was opened for signature in 1950 it was viewed by many with scepticism and disappointment. The Convention system took many years to get established. In the mid-1960s doubts were expressed as to whether the Court had a future and in the 1970s the Convention system of control faced a number of serious challenges. This book examines the story of the evolution of the Convention over its first 50 years (1948-1998). It reflects on the Convention's origins and charts the slow progress that it made over the 1950s and 1960s, before, in the late 1970s, the European Court of Human Rights delivered a series of landmark judgments which proved to be the foundation stones for the European Bill of Rights that we know today.
The European Convention on Human Rights has been a standard-setting text for transitions to peace and democracy in states throughout Europe. This book analyses the content, role and effects of the jurisprudence of the European Court relating to societies in transition. It features a wide range of transitional challenges, from killings by security forces in Northern Ireland to property restitution in East Central Europe, and from political upheaval in the Balkans to the position of religious minorities and Roma. Has the European Court developed a specific transitional jurisprudence? How do politics affect the ways in which the Court's judgments are implemented? Does the Court's case-law itself become woven into narratives of struggle in transitional societies? This book seeks to answer these questions by highlighting the unique role of Europe's main guardian of human rights, the Court in Strasbourg. It includes a comparison with the Inter-American and African human rights systems.
At first sight, it seems clear that the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) aims to eliminate discrimination against (only) women. However, a legal analysis of the object and purpose of the Convention reveals that CEDAW, in particular article 5a (which requires modification of ‘cultural patterns of conduct’), could be instrumental in addressing at least some aspects of LGBTI rights. Nevertheless, an analysis of Concluding Observations adopted by the Committee since 2010 reveals that the Committee, the body entrusted both with monitoring the implementation of the Convention and acting as its principal interpreter, does not yet use the possibility offered under article 5a to interpret the Convention in such a way. This article argues that the most realistic (albeit slow) way to enhance LGBTI rights within the framework of the CEDAW Convention seems to be to encourage state parties and non-governmental organisations to include discussions of discrimination against LGBTI persons in their Country Reports and Shadow Reports to the Committee, thereby inviting the Committee to reflect on LGBTI discrimination.
The most influential legal philosophies—notably legal positivism—tend to draw a sharp epistemological distinction between the concept of time and the concept of law. The author provides a legal pluralist account of law, understanding it to consist in a shared idea of justice and the shared normative experience of participants in a legal discourse. A common assumption by participants of their ability to grasp and control time—what the author terms “chronos”—forms one aspect of their shared experience of the legal. A normative understanding of time is thus fundamental to a normative understanding of law.
The international doctrine of human rights is one of the most ambitious parts of the settlement of World War II. Since then, the language of human rights has become the common language of social criticism in global political life. This book is a theoretical examination of the central idea of that language, the idea of a human right. In contrast to more conventional philosophical studies, the book takes a practical approach, looking at the history and political practice of human rights for guidance in understanding the central idea. It presents a model of human rights as matters of international concern whose violation by governments can justify international protective and restorative action ranging from intervention to assistance. The book proposes a schema for justifying human rights and applies it to several controversial cases - rights against poverty, rights to democracy, and the human rights of women. Throughout, the book attends to some main reasons why people are sceptical about human rights, including the fear that human rights will be used by strong powers to advance their national interests. The book concludes by observing that contemporary human rights practice is vulnerable to several pathologies and argues the need for international collaboration to avoid them.
Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type-the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our messy doctrinal present-first by compiling an initial doctrinal tally, then by sorting the doctrine into a novel time typology. This typology splits into three core categories-all time, some time, and broken time- and it brings analytical coherence to a concept too-long ignored. Even more, it sketches a blueprint for worthwhile reform. This Article proposes four such reforms- to Hicks v. Miranda, to mootness and desuetude, to retroactivity doctrine, and to Federal Rule of Civil Procedure 60(b)- and it rethinks the courts' most enduring time commitments. It also builds the foundation for what is to come, opening a discussion about time as a legal technology, arguing for a more critical investigation of the law's clock.
Two important trends are discernible in the contemporary philosophy of human rights. According to foundationalism, human rights have importantly distinctive normative grounds as compared with other moral norms. An extreme version of foundationalism claims that human interests do not figure among the grounds of human rights; a more moderate version restricts the human interests that can ground human rights to a sub-set of that general class, eg basic needs or our interest in freedom. According to functionalism, it belongs to the essence of human rights that they play a certain political role or combination of such roles, eg operating as benchmarks for the legitimacy of states or triggers for intervention against states that violate them. This article presents a view of human rights that opposes both the foundationalist and the functionalist trends. Against foundationalism, it is argued that a plurality of normative values ground human rights; these values include not only the equal moral status of all human beings but also potentially all universal human interests. Against functionalism, it is argued that human rights are moral standards—moral rights possessed by all human beings simply in virtue of their humanity—that may perform a plurality of political functions, but that none of these functions is definitive of their nature as human rights. The ensuing, doubly pluralistic, account of human rights is one that, it is claimed, both makes best sense of the contemporary human rights culture and reveals the strong continuities between that culture and the natural rights tradition.
PERHAPS MORE THAN ALL OTHers, the 13th element on the periodic table is one of utter contrasts. Although once highly valued as a "precious metal," the price of a kilogram of this element today is considerably less than one's morning cup of gourmet coffee; alloys of this element are often dense and durable, yet the pure element is a light and soft metal; although this element is reasonably reactive, it is also readily passivated, rendering it essentially rustproof. Even its position on the periodic table—gracefully residing between the only nonmetallic element of group 13, boron, and the oddly mercurial metal of gallium—is perhaps indicative of how extraordinary element 13 is. There is not even complete agreement on the spelling and pronunciation: Americans typically employ aluminum , while significant portions of the remaining English-speaking world prefer aluminium . Aluminum, like most elements, has its share of interesting trivia: For example, a 2.73-kg pyramid of "precious" ...
International human rights law has not yet been applied effectively to redress the disadvantages and injustices experienced by women by reason only of their being women. In this sense, respect for human rights fails to be "universal." The reasons for this general failure to enforce women's human rights are complex and vary from country to country. They include lack of understanding of the systemic nature of the subordination of women, failure to recognize the need to characterize the subordination of women as a human rights violation, and lack of state practice to condemn discrimination against women. Moreover, there has been an unwillingness by traditional human rights groups to focus on violations of women's rights, and a lack of understanding by women's groups of the potential of international human rights law to vindicate women's rights. © 1994 by the University of Pennsylvania Press. All rights reserved.
The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.
Diacritics 28.1 (1998) 19-42
EG: Luce Irigaray's writings have always figured strongly in your works, probably more than in the work of other American feminist theorists. Out of all the feminist theorists you both interrogate, she seems to emerge as a kind of touchstone of the feminist ethical, political, and intellectual concerns to which you seem to aspire. Could each of you briefly outline how she figures in your work, whether your relations to her have changed, and if so, how?
JB: I think that probably early on, when I started working on French feminism as a graduate student in the early '80s, I was not interested in her at all because she seemed to me to be an essentialist and that was a term we used quite easily then, when we thought we knew what it meant. In the late '80s, I started to rethink my objections to her on that basis and found that she was, among the feminist theorists I had read, perhaps the most versed in philosophy and that her engagement with philosophy was a curious mixture of both loyalty and aggression. And it became very interesting to me when I started thinking about her whole practice of critical mimesis -- what she was doing when she was reading Freud, what was she doing when she was reading Plato -- and I read Speculum again and again, frightened by its anger, compelled by the closeness of the reading, confused by the mimetism of the text. Was she enslaved to these texts, was she displacing them radically, was she perhaps in the bind of being in both positions at the same time? And I realized that whatever the feminine was for her, it was not a substance, not a spiritual reality that might be isolated, but it had something to do with this strange practice of reading, one in which she was reading texts that she was not authorized to read, texts from which she was as a woman explicitly excluded or explicitly demeaned, and that she would read them anyway. And then the question is: what would it mean to read from a position of radical deauthorization in order to expose the contingent authority of the text? That struck me as a feminist critical practice, a critical reading practice that I could learn from, and from that point on, highly influenced by both Drucilla's work and Naomi Schor's work [see Schor], I started to read her quite thoroughly.
PC: Is this kind of relationship that she has with the philosophers she reads a sexual relationship? I am thinking of some of the sexualized terms you just used: loyalty and aggression.
JB: Yes, there is no doubt that there is an eros of a certain kind, usually the kind that frightens me, quite frankly. I think Carolyn Burke has made this argument that Irigaray has a romance with the philosophers [see Burke]. I think she has a certain masochistic-sadistic erotic engagement with the philosophers.
EG: Do you think it is sado-masochistic?
JB: Well, I think it was much more aggressive in Speculum of the Other Woman than it became in An Ethics of Sexual Difference. There, I think there is an engagement that is still very difficult, but at least there is evidence of a more loving engagement.
PC: I hope that we can return to the question of love at the end. Is this the kind of relationship that you have to her texts?
JB: No, I'm probably too frightened. [Everybody laughs.] And I don't engage them that closely, probably because I find it frightening to be in that particular knot. She doesn't actually have a chapter in any of my books. I think I can't quite devote a chapter to her. . . .
EG: No, but you devote large sections of chapters. . . .
JB: That's true, but I can't stay there for a prolonged period of time [laughs], whatever that's worth.
EG: I'd like to come back to this later, because I think it is a really interesting reaction. . . . But first, Drucilla, what is your story?
DC: Well, I started out in a romantic relationship...
Using the accounts of Gewirth and Griffin as examples, the article criticises accounts of human rights as those are understood in human rights practices, which regard them as rights all human beings have in virtue of their humanity. Instead it suggests that (with Rawls) human rights set the limits to the sovereignty of the state, but criticises Rawls conflation of sovereignty with legitimate authority. The resulting conception takes human rights, like other rights, to be contingent on social conditions, and in particular on the nature of the international system.
Debate over the theory of rights has recently reemerged, with a confrontation between postfoundational writings that challenge the very discourse of rights and Habermasians (and others) who insist on the foundational centrality of rights. This article will not enter such a debate directly, but rather will try to take seriously that challenge itself. The article asks what, exactly, is at stake in an argument for or against rights and queries whether this challenge to rights discourse entails giving up on rights as a tool of political leverage. In responding to such questions I indicate a future for rights and rights discourse, one found within the project of radical democracy. I not only insist that we cannot abandon the discourse of rights in contemporary theory and politics, but also go on to suggest that sustaining and reinvigorating the discourse of rights requires a significant displacement of that discourse from the dominant terms of liberalism and toward those of radical democracy.
Erudite and timely, this book is a key contribution to the renewal of radical theory and politics. Addressing the paradox of a contemporary humanitarianism that has abandoned politics in favour of combating evil, Douzinas, a leading scholar and author in the field of human rights and legal theory, considers the most pressing international questions.
Asking whether there ‘is an intrinsic relationship between human rights and the recent wars carried out in their name?’ and whether ‘human rights are a barrier against domination and oppression or the ideological gloss of an emerging empire?’ this book examines a range of topics, including:
* the normative characteristics, political philosophy and metaphysical foundations of our age
* the subjective and institutional aspects of human rights and their involvement in the creation of identity and definition of the meaning and powers of humanity
* the use of human rights as a justification for a new configuration of political, economic and military power.
Exploring the legacy and the contemporary role of human rights, this topical and incisive book is a must for all those interested in human rights law, jurisprudence and philosophy of law, political philosophy and political theory.
Although the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW” or the “Convention”) has succeeded in some respects, even its supporters acknowledge broad failures. CEDAW’s weakness draws on the titular mistaken diagnosis: “women” are not the issuegender disparities are. The 1970’s drafting of CEDAW focused on bringing women to their place at the international law table. What’s wrong with women’s rights? In the international context, CEDAW attempts to empower women but fails to respect other gender inequality. As the preeminent treaty on gender inequality, CEDAW cannot succeed in creating gender equality if its scope remains limited to women. Men are external to core debates over gender inequality. CEDAW’s focus on “women” enshrines the male/female binary in international law, when it should seek the elimination of the categories themselves. Under this model, women are the victims, while men are presumed to be the perpetrators. Catharine MacKinnon recently asked “Are women human?,” and CEDAW’s answer, by its existence outside of human rights, is that they are not. The Convention removes women’s issues from human rights discussions, isolating their concerns. The identitarian category of “women” serves to reify rather than undermine gender disparities. For international law to foster gender equality, it is imperative that CEDAW undergo a radical refashioning.
In this pathbreaking philosophical work, Elizabeth Grosz points the way toward a theory of becoming to replace the prevailing ontologies of being in social, political, and biological discourse. Arguing that theories of temporality have significant and underappreciated relevance to the social dimensions of science and the political dimensions of struggle, Grosz engages key theoretical concerns related to the reality of time. She explores the effect of time on the organization of matter and on the emergence and development of biological life. Considering how the relentless forward movement of time might be conceived in political and social terms, she begins to formulate a model of time that incorporates the future and its capacity to supersede and transform the past and present.
Grosz develops her argument by juxtaposing the work of three major figures in Western thought: Charles Darwin, Friedrich Nietzsche, and Henri Bergson. She reveals that in theorizing time as an active, positive phenomenon with its own characteristics and specific effects, each of these thinkers had a profound effect on contemporary understandings of the body in relation to time. She shows how their allied concepts of life, evolution, and becoming are manifest in the work of Gilles Deleuze and Luce Irigaray. Throughout The Nick of Time , Grosz emphasizes the political and cultural imperative to fundamentally rethink time: the more clearly we understand our temporal location as beings straddling the past and the future without the security of a stable and abiding present, the more transformation becomes conceivable.
This article explores the possibility that some of the advantages of prospective overruling can be achieved by deploying the weaker prospective lawmaking technique of ‘not following’ which the author claims is a well‐established feature of the common law as is illustrated most recently by Hall v Simons [2000] 3 All E R 673. On the analysis presented, that case abolished the barristerial immunity for the future only. Some of the problems of time can been seen at their most acute in R v Governor of Brockhill Prison, ex parte Evans [2000] 4 All ER 15 and the author ventures to suggest that had sufficient attention been paid to the distinction between ‘authoritatively overruling’ and ‘not following’ the extreme and nonsensical (but legally correct) outcome in that case might have been avoided. The unsatisfactory outcome is traced to the influence of the declaratory theory of the common law which holds that judicial decisions, especially those changing or correcting earlier decisions, are ‘inevitably retrospective’. The author therefore considers time as a problem not only for practice but also for legal theory and is concerned to challenge the descriptive and normative claims of the declaratory theory of the common law, even in the reinterpreted and diluted form which emerged from judicial opinion in, and academic comment on, Kleinwort Benson v Lincoln City Council [1999] 2 AC 349.